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Perry v. Delisle7/12/2005
s of the Act because the number of employees "temporarily" fell below three, reasoning that "Delisle's decision to increase the size of his work force after eight months of operating with only two employees is not found to present the kind of 'instability' contemplated by the Court of Appeals in [Cotman v. Green, 4 Va. App. 256, 356 S.E.2d 447 (1987)]."
Perry petitioned for review by the full commission, which, by decision issued January 22, 2004, affirmed the deputy commissioner. The commission noted that
The evidence predominates in establishing that Mr. Delisle did not employ three or more employees in the same business for three months before the claimant's accident and for four months following the claimant's accident. Furthermore, the record does not reflect that Mr. Delisle's established mode of performing the work of his business necessarily required him to employee three or more employees. To the contrary, Mr. Delisle explained that he chose not to replace a third employee who left his employ in 2000 because he did not need the additional worker to perform his business.
Accordingly, the commission concluded that "Mr. Delisle sustained his burden of proving that he did not regularly employ three or more employees in the Commonwealth at the time of the claimant's accident and injury."
Perry appealed. On November 30, 2004, a three-judge panel of this Court, with one judge dissenting, reversed the commission, reasoning that Delisle failed "to establish that seven to eight month period in which R & T Construction had two employees was the established mode of performing the work of R & T Construction, and not just a temporary, transient circumstance." Perry v. Delisle, 44 Va. App. 415, 422, 605 S.E.2d 330, 334 (2004). By order dated February 1, 2005, this Court granted the appellees' petitions for rehearing en banc and stayed the mandate of the panel decision. We now affirm.
II. ANALYSIS
On appeal from a decision of the Workers' Compensation Commission, "' t is our duty to determine whether credible evidence supports the Commission's finding . . . and, if such evidence exists, to sustain the finding.'" Celanese Fibers Co. v. Johnson, 229 Va. 117, 121, 326 S.E.2d 687, 690 (1985) (quoting Cook v. City of Waynesboro, 225 Va. 23, 31, 300 S.E.2d 746, 750 (1983)) (omission in original). Accordingly, " e do not judge the credibility of witnesses or weigh the evidence on appeal." Id. Rather, if there is credible evidence in the record supporting the commission's factual findings, we are bound by those findings regardless of whether there is evidence that may support a contrary finding. Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986); Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986).
The Workers' Compensation Act provides that " very employer and employee, except as herein stated, shall be conclusively presumed to have accepted the provisions of this title respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment and shall be bound thereby." Code § 65.2-300(A). However, "' mployee' shall not mean . . . mployees of any person, firm or private corporation . . . that has regularly in service less than three employees in the same business within this Commonwealth . . . ." Code § 65.2-101. Thus, an employer may defeat a workers' compensation claim if it can prove, by a preponderance of the evidence, that it is not subject to the provisions of the Act because it "has regularly in service" less than three employees in the Commonwealth of Virginia. Craddock Moving & Storage Co.
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